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Dec. 23
--The Environmental Protection Agency has asked the U.S. Court of Appeals for
the Fourth Circuit to review a district court ruling that said the agency can't
require farmers to obtain Clean Water Act discharge permits for agricultural
stormwater runoff from farmyards (Alt v. EPA, 4th Cir., No. 13-2534,
appeal filed 12/23/13).

The Dec. 23 appeal
by EPA follows an Oct. 23 ruling by the U.S. District Court for the Northern
District of West Virginia holding that stormwater runoff from litter and manure
is exempt from National Pollutant Discharge Elimination System permitting
requirements under Section 402 of the Clean Water Act (Alt v. EPA, 2013
BL 218814, N.D. W.Va., No. 2:12-cv-00042, 10/23/13; ).

The environmental
groups Food and Water Watch, Potomac Riverkeeper, Waterkeeper Alliance, Center
for Food Safety and the West Virginia Rivers Coalition, which intervened on
behalf of the EPA, also filed separate notice of appeal Dec. 20 of the
ruling.

The district court ruled that litter and manure washed from “the
farmyard to navigable waters by a precipitation event is an agricultural
stormwater discharge, and, therefore, not a point source discharge, thereby
rendering it exempt from the NPDES permit requirement of the Clean Water
Act.”

Lawsuit Filed in 2012.

At issue was a 2012 lawsuit filed
by West Virginia poultry grower Lois Alt against the EPA, challenging the
agency's authority to regulate livestock farms under the Clean Water Act by
interpreting regulations in ways that treat ordinary agricultural stormwater
runoff as “process wastewater,” effectively making all areas of poultry farms
regulated production areas.

In particular, the district court said the
areas between poultry houses are clearly not animal confinement areas and that
manure and litter in the farmyard “would remain in place and not become
discharges of a pollutant unless and until stormwater conveyed the particles to
navigable waters.”

Alt challenged the basis for the EPA administrative
order against the Eight is Enough broiler operation near Old Fields, W.Va., that
threatened penalties as high as $37,500 a day for not obtaining an NPDES
permit.

EPA could not be reached for comment on the appeal.

However, Scott Edwards, co-founder of the Food and Water Justice, a project
of Food and Water Watch, told Bloomberg BNA Dec. 23, “We believe that the court
completely misapplied well-settled law in exempting the Alt pollution discharges
from the Clean Water Act.”

Edwards said, “The court has, in effect, given
these highly polluting, yet sorely under-regulated facilities, an even greater
license to pollute. Not only does the law require permits for the kinds of
pollution that Alt admits is coming from her operation, but the deteriorating
conditions of our waterways demands it.”

Ellen Steen, general counsel for
the American Farm Bureau Federation, which intervened on behalf of Alt in the
case, told Bloomberg BNA in a Dec. 23 e-mail, “If EPA wishes to persist in its
unlawful application of the Clean Water Act, we are pleased to take the matter
to the appellate court. We are confident the Fourth Circuit, too, will decide
this case in favor of Mrs. Alt.”

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